Related Rule
Germany
Practice Relating to Rule 151. Individual Responsibility
Germany’s Military Manual (1992) provides: “Each member of the armed forces who has violated the rules of international humanitarian law must be aware of the fact that he can be prosecuted according to penal or disciplinary provisions.”
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1207.
A commentary on the manual notes:
The Second Additional Protocol (AP II) does not mention grave breaches. Article 6 nevertheless regulates the prosecution and punishment of criminal offences connected with armed conflict. The AP II presumes application of domestic criminal law, whereby the domestic power of sentence is subordinate to the demands of the Protocol.
Rüdiger Wolfrum, “Enforcement of International Humanitarian Law”, in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford, 1995, p. 524.
Germany’s Law Introducing the International Crimes Code (2002) provides for the punishment of, inter alia, genocide (Article 1, paragraph 6), crimes against humanity (Article 1, paragraph 7) and war crimes, including: “War crimes against persons” (Article 1, paragraph 8); “War crimes against property and other rights” (Article 1, paragraph 9); “War crimes against humanitarian operations and emblems” (Article 1, paragraph 10); “War crimes consisting in the use of prohibited methods of warfare” (Article 1, paragraph 11); and “War crimes consisting in employment of prohibited means of warfare” (Article 1, paragraph 12).
Germany, Law Introducing the International Crimes Code, 2002, Article 1, §§ 6–12.
Some of these crimes must be punished when committed “in connection with an international armed conflict or with an armed conflict not of an international character”, some others when committed “in connection with an international armed conflict”.
Germany, Law Introducing the International Crimes Code, 2002, Article 1, §§ 8(1)–(2), 9(1), 10(1)–(2), 11(1)–(2) and 12 (international and non-international armed conflict); Article 1, §§ 8(3), 9(2) and 11(3) (international armed conflict).
In the Djajić case in 1997, Germany’s Supreme Court of Bavaria tried a national of the former Yugoslavia. In its judgment, the Court referred to the 1949 Geneva Convention IV and the grave breaches regime. It considered the conflict to be an international conflict (in June 1992) and regarded the victims as “protected persons” in the meaning of Article 4 of the 1949 Geneva Convention IV. The accused was found guilty of complicity in 14 counts of murder and 1 count of attempted murder.
Germany, Supreme Court of Bavaria, Djajić case, Judgment, 23 May 1997.
In the Jorgić case before Germany’s Higher Regional Court of Düsseldorf in 1997, the accused, a Bosnian Serb, was tried for acts committed in 1992 in Bosnia and Herzegovina which were punishable under the German Penal Code. The Court referred, inter alia, to Article 147 of the 1949 Geneva Convention IV. It considered the conflict to be an international conflict in 1992, and the victims to be “protected persons” in the meaning of Article 4 of the 1949 Geneva Convention IV. The accused was found guilty of complicity in genocide, in conjunction with murder, dangerous bodily harm and deprivation of liberty.
Germany, Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf), Jorgić case, Judgment, 26 September 1997.
In 1999, the Federal Court of Justice upheld the conviction in the Jorgić case for the most part.
Germany, Federal Court of Justice (Bundesgerichtshof), Jorgić case, Judgment, 30 April 1999.
In 2000, the Federal Constitutional Court confirmed that the accused could be tried by German courts and under German penal law.
Germany, Federal Constitutional Court (Bundesverfassungsgericht), Jorgić case, Decision, 12 December 2000.
In the Kusljić case in 1999, Germany’s Supreme Court of Bavaria tried a national of Bosnia and Herzegovina for crimes committed during 1992 in the territory of Bosnia and Herzegovina. The accused was sentenced to life imprisonment for, inter alia, genocide in conjunction with six counts of murder.
Germany, Supreme Court of Bavaria (Bayerisches Oberstes Landesgericht), Kusljić case, Judgment, 15 December 1999.
In 2001, the Federal Court of Justice revised this judgment into a life sentence for, inter alia, six counts of murder. It considered the acts of the accused to be grave breaches in the meaning of Articles 146 and 147 of the 1949 Geneva Convention IV.
Germany, Federal Court of Justice (Bundesgerichtshof), Kusljić case, Decision, 21 February 2001.
In the Sokolović case before Germany’s Higher Regional Court of Düsseldorf in 1999, a Bosnian Serb accused of acts committed in 1992 in Bosnia and Herzegovina was sentenced for complicity in genocide, deprivation of liberty and dangerous bodily injury.
Germany, Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf), Sokolović case, Judgment, 29 November 1999.
In 2001, the Federal Court of Justice upheld this judgment and referred, inter alia, to Articles 146 and 147 of the 1949 Geneva Convention IV and provisions of the German Penal Code. The situation in 1992 in Bosnia and Herzegovina was qualified as an international armed conflict and the victims were considered to be “protected persons” in the meaning of Article 4 of the 1949 Geneva Convention IV.
Germany, Federal Court of Justice (Bundesgerichtshof), Sokolović case, Judgment, 21 February 2001.
In 1993, during a debate in the Sixth Committee of the UN General Assembly on the question of responsibility for attacks on UN and associated personnel and measures to ensure that those responsible for such attacks were brought to justice, Germany, referring to a draft of the Convention on the Safety of UN Personnel which had been introduced by New Zealand, stated:
[This draft convention] also established the personal responsibility of the perpetrators by making such acts crimes punishable under the national laws of States parties. That was especially important when the United Nations was operating in areas of the world where there was no effective authority to guarantee that the perpetrators were actually punished. The draft convention would fill a vacuum.
Germany, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/48/SR.16, 21 October 1993, § 65.
According to a representative of the German Central Office for the Investigation of National-Socialist Atrocities at Ludwigsburg (Zentrale Stelle zur Aufklärung nationalsozialistischer Gewaltverbrechen), established by the judicial administrations of the German States in 1958, by September 1999, Germany had investigated the cases against more than 100,000 accused and suspected persons for crimes committed during the Nazi regime. In all, 7,225 of the proceedings were handed over to the public prosecution and about 6,500 individuals were convicted. The representative stated: “It is important that [even the elderly persons accused of having committed such crimes] must be held responsible for their deeds.”
Willi Dressen, “Eine Behörde gegen das Vergessen”, Die Welt, 2 September 1999.
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “German nationals in private security companies and in the foreign legion operating abroad”, Germany’s Federal Government wrote:
a) How does the Federal Government plan to ensure that … private security companies, due to their definition and status as “non-combatants”, do not consider themselves as not being bound by international law and undermine international humanitarian law?
… Employees of private security companies who are not combatants are bound by international humanitarian law and can be prosecuted by domestic courts or the International Criminal Court if they have committed war crimes in armed conflict.
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Inge Höger, Jan van Aken, Christine Buchholz, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/4012, 1 November 2010, p. 9.
Germany’s Criminal Procedure Code (1987), as amended, provides:
The aggrieved person or his heir may, in criminal proceedings, bring a property claim against the accused arising out of the criminal offence if the claim falls under the jurisdiction of the ordinary courts and is not yet pending before another court, in proceedings before the local court irrespective of the value of the matter in dispute.
Germany, Criminal Procedure Code, 1987, as amended, § 403(1).
